Review of the Indira Gandhi decision?

HARDLY is the ink dry on the Federal Court's Indira Gandhi decision, a group of NGOs have announced that they will file an application for the Federal Court to review its decision. The public seems intrigued. After all, it was a final decision of the highest court of the land. What is this power of review? When can it be exercised?

Does the power exist?

Yes, the Federal Court does have an inherent power to review its own decision. It has a wide discretion to do so. But it is an exceptional power which is sparingly exercised.

A 2008 decision of the Federal Court ruled that this discretionary power "will not be used liberally, but only sparingly, in exceptional cases and on a case by case basis where a significant injustice had probably occurred and there was no alternative remedy".

Why so? Because, according to our long-established system, the Federal Court must be taken to be right in arriving at its decision. "There must be finality," said the chief justice in the 2008 decision. You see, the reopening of a case after the ordinary appeal process has been concluded can also create injustice. Hence any such proceedings will only be reopened in limited circumstances?

What are these circumstances?

The overriding consideration is to prevent injustice or prevent an abuse of the court's processes. It's all about ensuring that justice is served in each case; and any injustice corrected. Court decisions have dealt with the situations when the court will reopen a final decision. These non-exhaustive list includes the following:

» A litigant denied the right to have his case heard on the merits;

» A decision obtained by fraud or suppression of material evidence;

» The court making the decision was not properly constituted, was illegal or did not have jurisdiction to decide the case;

» There was a clear infringement of the law;

» An order was made inadvertently without the applicant being heard through no fault of his;

» The court making the decision was biased;

» The decision was arrived at by a corrupted process and a wrong result arrived at – thus undermining critically the integrity of its earlier decision.

Does any of these apply to this case? It will be a difficult task to show that the carefully crafted 101-page judgment suffered any of the infirmities that could justify a review of the decision. Let's look at a summary of the three questions that the Federal Court answered.

First, the High Court had the power to review actions of the Registrar of Muallafs who issued the conversion certificates. Based on the power vested in it by the Federal Constitution it could review the decision of any other administrative action, including that of the registrar. To make sure it had complied with the relevant law – that is, the (Perak) Religion of Islam Enactment 2004.

Second, the registrar's act of converting to Islam the under-aged children of a civil law marriage without complying with the mandatory requirements of the Perak religious law was wrong. The requirements he ignored were the non-utterance of the oath affirming belief in the faith; and getting the consent of the parents.

Third, the consent of both parents of a child of a civil marriage was necessary before any conversion to Islam can take place. The court said it would be a very wrong thing to allow one spouse to unilaterally convert the child without (in this case) the consent of the mother (who had been given custody of the children).

Significantly, the government had deferred amendments to the law to await the outcome of this case.

The prime minister too responded positively: "I think it's very difficult to please everybody but it's important for us to ensure that we respect the system, the process and that the decision was made in the best interest of all."

Any aggrieved group should bear this in mind before seeking to review the decision. Above wounded pride and all, there must be acceptance that the decision marks a triumph of the Federal Constitution. Not of any one faith or sectarian interest.

As the president of the court, Justice Zulkifli Makanudin, said on behalf of the court:

"I would like to state here that in deciding the issue before us, as judges we are not swayed by our own religious conviction and sentiments over the issue."

And His Lordship endorsed former Lord President Tun Suffian's extra-judicial 1982 comment:

"In a multiracial and multi religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim, Buddhist, Hindu or whatever, we strive not to be too identified with any particular race or religion – so that nobody reading our judgment with our name deleted could with confidence identify our race or religion, and so that the various communities, especially minority communities are assured that we will not allow their rights to be trampled underfoot".

Gurdial, a former law professor at University Malaya, is in legal practice as a consultant. Comments: letters@thesundaily.com